Citation Nr: 0810923
Decision Date: 04/02/08 Archive Date: 04/14/08
DOCKET NO. 97-13 610A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for headaches, to include
as secondary to the service-connected residuals of a
fractured left mandible.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
John Z. Jones, Counsel
INTRODUCTION
The veteran served on active duty from May 1974 to August
1979.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from an August 1996 rating decision of the
St. Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO). Thereafter, the veteran's file was
transferred to the RO in Columbia, South Carolina.
The veteran testified at a hearing before a Hearing Officer
at the RO in August 1997.
This matter was before the Board in October 2003 and November
2006, and was then remanded for further development.
FINDING OF FACT
The veteran's headaches are etiologically related to his
service-connected residuals of a fractured left mandible.
CONCLUSION OF LAW
With resolution of reasonable doubt in the veteran's favor,
the veteran's headaches are proximately due to or the result
of his service-connected residuals of a fractured left
mandible. 38 C.F.R. §§ 3.102, 3.310 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
There has been a significant change in the law during the
pendency of this appeal. The Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000),
now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West Supp. 2001). The legislation has eliminated the well-
grounded claim requirement, has expanded the duty of VA to
notify the appellant and the representative, and has enhanced
its duty to assist an appellant in developing the information
and evidence necessary to substantiate a claim. See
generally VCAA. Given the disposition reached in this case,
the Board finds that VA has met its duty to assist the
veteran in the development of the claim on appeal under VCAA.
Pertinent Law and Regulations
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2007). See Harder v. Brown, 5 Vet. App. 183, 187 (1993).
Additional disability resulting from the aggravation of a
non-service-connected condition by a service-connected
condition is also compensable under 38 C.F.R. § 3.310(a).
See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In order to prevail on the issue of entitlement to secondary
service connection, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical nexus evidence establishing a connection
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
Analysis
With respect to Wallin element (1), current disability, the
claims folder is replete with medical evidence diagnosing the
veteran with chronic (mixed) headaches, including on VA
examination in August 2004. Therefore, element (1) has been
satisfied.
With respect to element (2), service connection is in effect
for undisplaced fracture of the left mandible and limitation
of motion of the temporomandibular joint disease (TMJ).
With respect to Wallin element (3), medical nexus, there is
conflict in the record in regards to whether the veteran's
headaches are secondary to his service-connected left
mandible fracture residuals. Following a VA examination in
September 1997, the VA examiner opined:
It is felt at this time that the
headaches are not related to the fracture
of the mandible. His history reveals
that the headaches were present before
the fractured mandible, not as severe;
they became severe approximately ten
years after the fractured mandible and
are less intense now since he has been on
Zoloft or antidepressant therapy. At
this time we will say it is not likely
that the headaches are secondary to the
fractured mandible.
As far as the etiology due to another
cause, obviously I feel they are due to
another cause and at this time I would
feel that these headaches are more
secondary to his other problems other
than his fractured mandible.
The veteran was afforded another VA examination in August
2004. The VA examiner reported a diagnosis of chronic mixed
headaches. She stated:
I suspect there is a migrainous component
with associated nausea and vomiting,
though he does describe some cluster-like
features of tearing and nasal drainage
with the headache. I think the overall
picture is more of a vascular headache,
probably migrainous.
The VA examiner also diagnosed "jaw pain and headache
associated with chewing, talking, et cetera." Regarding
this diagnosis, the examiner commented that "[w]hile this
may be a migrainous problem, he certainly seems to relate his
discomfort to his jaw injury." In a November 2005 addendum,
the August 2004 VA examiner stated that the headaches were
not attributable to "military service," but that the jaw
pain was related to the mandible fracture.
In March 2006, after reviewing the results of a magnetic
resonance imaging (MRI) examination of the brain done in
February 2005, the VA examiner indicated that her opinion
regarding the veteran's headaches and jaw pain had not
changed. She still contended that the veteran was
complaining of two different types of discomfort - chronic
mixed headaches and "jaw pain and headache with chewing,
talking, etc." She acknowledged that the jaw pain that he
described could very well be related to the prior jaw injury.
In July 2007, the same VA examiner again reviewed the claims
file and reiterated her opinion that the veteran's mixed
headaches were not related to the left mandible fracture.
Upon review, the Board acknowledges the opinions provided by
the VA examiners that the veteran's headaches are unrelated
to his service-connected left mandible fracture; however, it
cannot overlook the fact that on two occasions the August
2004 VA examiner indicated that the veteran had "jaw pain
and headache" which was related to the left mandible
fracture. While this suggests that the veteran experiences
different types of headaches, with the mixed headaches being
unrelated to service, it remains that the VA examiner felt
that the left mandible fracture did result in jaw pain and
headaches. Resolving doubt in the veteran's favor, the Board
finds the examiner's statement that the veteran has jaw pain
and headache that is related to service-connected jaw injury
provides sufficient medical nexus between the veteran's right
foot disability and a service-connected disability. See 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102.
In short, Wallin element (3) has been met with respect to the
headaches. Since all three Wallin elements are satisfied
with respect to the headaches, service connection is granted
for that disability secondary to service-connected
disabilities is granted. The appeal is allowed to that
extent.
ORDER
Entitlement to service connection for headaches is granted.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs